Historical Context in The Bill of Rights

The Tenth Amendment serves as a key point of compromise between the two groups who forged the Constitution, the Federalists and the Anti-Federalists. While the Federalists sought to steer the nation toward a strong centralized government, the Anti-Federalists favored a weak central government, with political power largely distributed between state governments and individuals. The Tenth Amendment provides for the Anti-Federalist agenda because it stipulates that any powers not specifically granted to the federal government in the Constitution “are reserved to the States respectively, or to the people.”

The Ninth Amendment represents a provision that clarifies the broader role of the Bill of Rights. The Federalists argued that naming certain rights for individual citizens removes every unnamed right by default. The Ninth Amendment addresses this precise problem by dictating that the particular rights listed in the Constitution do not “deny or disparage” any other rights, all of which are retained by the American people.

The Eighth Amendment is nearly identical to a measure in the English Bill of Rights of 1689, which dictates that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The English law was motivated by the case of Titus Oates, who was imprisoned in 1685 after his false accusations resulted in numerous executions of innocent people. Oates’s punishment was to be annually brought out for three days of public shaming: two days spent pilloried—constrained and locked to a post in a public square—and one day spent tied to a moving cart to be dragged through the streets and whipped. Because of the depravity of Oates’s punishment, English and, in turn, American lawmakers set legal measures against similarly “cruel and unusual punishments.” This clause, however, has not historically included certain forms of execution, which has been a source of ongoing debate.

While the Sixth Amendment provides rights to defendants in criminal cases, the Seventh Amendment offers the right of trial by jury to defendants of common law cases. Common law cases tend to focus on property and are significantly less severe than criminal cases, which focus on crimes which endanger the health and safety of other people. The Seventh Amendment is often considered one of the most straightforward amendments. There are two particularly notable facts about it. First, while the amendment was ratified, it has never been officially incorporated by the states. Most states voluntarily follow the Seventh Amendment but it has not been federally enforced. Second, it remains unclear why there is a threshold sum of twenty dollars. There is little scholarship on that clause, and no consensus.

The Sixth Amendment sets forth a number of critical guidelines for the procedures of criminal trials in court, all of which provide rights for accused criminals. Trials must be “speedy,” meaning that that the defendant has the right to be tried soon after being accused; the definition of “soon” is determined by the states. Trials must be public, encouraging transparency. Trials must be determined by an impartial and local jury. These last two provisions were motivated by the numerous trials of Americans held by British courts in the years leading up to the American Revolution. The British courts were not public and did not provide juries, resulting in sentences which struck many Americans as unjust. In the wake of those trials, which Thomas Jefferson decries in the Declaration of Independence, the American founders strove to offer protections and rights for defendants.

This protection against the deprivation of “life, liberty, or property” was directly inspired by John Locke’s Second Treatise of Government. Locke writes that “no one ought to harm another in his life, health, liberty, or possessions.” The founding fathers were profoundly influenced by Locke’s political philosophy, and wrote a nearly identical clause into the Declaration of Independence.

The Fourth Amendment to the Constitution was conceived as a protection against the invasive actions of the British Army in the years leading up to the American Revolution. Following the legislation of the British Parliament, the troops would use “writs of assistance” to enter and seize the property of American colonists. A “writ of assistance” is a generalized search warrant and allows government troops and officials to intrude on civilians with few restrictions. The Fourth Amendment prevents government officials from attaining a warrant to enter a citizen’s property without “probable cause,” which requires substantial evidence and reasoning. This measure has proved critical in shaping the operations of American law enforcement agencies.

The inclusion of the Third Amendment was motivated by the actions of the British army in the American colonies in the years leading up to and during the American Revolutionary War. The British Army often quartered, or housed, their troops in the private homes of American colonists. This trend caused sufficient irritation and grief that the Constitutional Congress saw fit to include a measure against such actions in the future. The Third Amendment has been the least litigated amendment in US legal history, spurring the American Bar Association to nickname it the “runt piglet” of the Bill of Rights.

The origins of the Second Amendment can be traced back to two sources. The first is the English Bill of Rights of 1689, which includes a provision stating “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.” That law was motivated by the tumult in England during the late 17th century, including clashes between Protestants and Catholics—which explains why only Protestants could have arms. According to British law, citizens had natural rights to life, and therefore to self-defense, and therefore to arms. The second source was the necessity of militias in the American Revolution. The American colonies would have likely failed to secure independence from Great Britain had it not been for the self-organized militias who rallied to fight against the occupying British troops. Recognizing the role of those militias, the Constitutional Congress included the Second Amendment, which allows citizens to bear arms because of the importance of “a well-regulated militia.” James Madison, who authored the Bill of Rights, retained from the English text the word “arms,” which comes from the Latin arma, meaning “tools.” Due to the inherent dangers of allowing citizens to arm themselves, the Second Amendment has remained one of the most controversial amendments.